DuBose v. DuBose, 19502

• Decision Date: 18 October 1972
• Docket Number: No. 19502,19502
• Citation: 259 S.C. 418,192 S.E.2d 329
• Parties: Margaret McG. DuBOSE, Respondent, v. Johnnie Leo DuBOSE, Jr., Appellant.
• Court: South Carolina Supreme Court

Page 329

192 S.E.2d 329

259 S.C. 418

Margaret McG. DuBOSE, Respondent, v. Johnnie Leo DuBOSE, Jr., Appellant.

No. 19502.

Supreme Court of South Carolina.

Oct. 18, 1972.

Ryan L. Scott and Frank K. Sloan, Columbia, for appellant.

A. Frank Lever, Jr., Lexington, and Harry M. Lightsey, Jr., Columbia, for respondent.

BUSSEY, Justice:

In this action the respondent wife was granted a divorce on the ground of adultery, primary custody of and support for the two children of the parties, and attorney's fees. The husband appeals, challenging all relief granted to the wife.

The parties were married on June 1, 1956, and separated finally on May 10, 1971. This action was commenced May 13 1971, and the divorce decree was entered on December 7, 1971. Two sons of the marriage reached the respective ages of five and eleven during the summer of 1971.

Appellant's primary contention is that there was error in granting a divorce on the ground of adultery in that there was allegedly no evidence to establish any time or place of the alleged offense, with whom it was committed, or the circumstances thereof. He also asserts that there was insufficient corroborating evidence. We summarize the evidence in the light of these two contentions.

The husband's employment record seems to have been quite irregular. From March 1967 until January 1968 he worked for the Exchange Realty Company. In 1968 he went briefly into business for himself and then to work for Ben Arnold Company where he was working during 1969. In 1970 he worked for Atlantic Detective Agency for some five or six months. In May 1967 a female, whom we shall refer to simply as Sandra, went to work at Exchange Realty Company and became the secretary of the appellant husband. At substantially the same time, the husband left his wife and children for a period of about two and a half months, leaving them in more or less destitute circumstances financially. His entire attitude toward his wife changed substantially, leading her to suspect his involvement with another woman.

During the brief period of time that Sandra was his secretary, he endorsed a note for her in the amount of $400.00. In either 1968 or 1969 he endorsed another note for Sandra to a finance company in the amount of $1,500.00, and along about the same time he gave Sandra his Master Charge credit card for her personal use. The wife knew nothing of the first note endorsed for Sandra until the trial of the case, but learned of the fifteen hundred dollar note in January 1971 when she received a telephone call from the finance company thereabout. Naturally, she demanded an explanation of her husband, who insisted that he was not involved with Sandra, that he had simply tried to help her out because she was in financial straits, and that he had no other involvement with her or obligation on her account. She accepted his explanation and continued to live with him until May 10th, when a law suit was instituted against him for an account balance of some two thousand dollars incurred upon the Master Charge card given by the husband to Sandra for her personal use. Since this latter development the parties have not lived together.

Subsequent to the separation of the parties, the wife learned of the husband's involvement with a female, whom we refer to simply as Annette _ _, and whom the husband admittedly met at Myrtle Beach during the summer of 1969 while traveling for Ben Arnold Company. A Mr. Hamer, with whom the husband worked in the summer of 1970, testified that the husband had told him of taking Annette to his room, and staying with her, at the Continental Motel at Myrtle Beach during the summer of 1969. Among other things, according to Mr. Hamer, the husband told him that Annette was in love with him and liked the type of underwear he wore. While the husband was working with Mr. Hamer, Annette called the husband by telephone on more than one occasion, arranging with the husband rendezvous at one place or another. In response to a question on cross-examination, Mr. Hamer also testified that Annette herself told him of staying with the husband at the Continental Motel in Myrtle Beach.

After the separation of the parties the husband contacted both Mr. and Mrs. Hamer and asked to visit them for the purpose of discussing his relationship with his wife. As a result, Mrs. Hamer talked with him in detail, in person, and additionally talked to him on the phone on several occasions. He wanted Mrs. Hamer to talk to his wife in his behalf. In the course of these conversations Mrs. Hamer discussed with the husband at some length his relationship with Annette. Among other things, he told Mrs. Hamer that Annette was still in love with him and was still trying to have an affair with him. He neither admitted nor denied his adulterous relationship with Annette, telling Mrs. Hamer, according to her testimony, that he had been advised 'not to admit anything'. In this connection there is also evidence to the effect that he told his wife that he would confess everything if she would consent to take him back.

The husband called no witness, relying solely on his own testimony. He denied having committed adultery with either Sandra or Annette. He admitted endorsing the notes for Sandra and giving her the credit card for her use, and also admitted personally making some payments on these obligations but testified that he did so to protect his credit. He claimed that many of the items charged against the Master Charge account were not obtained by Sandra, and that the card had been stolen from her. While he denied committing adultery with Annette and denied having admitted such to Mr. Hamer, he did not refute many of the details brought out in the testimony of both Mr. and Mrs. Hamer showing a continuing, friendly relationship on his part with the said Annette over a period of some two years.

The foregoing is only a summary of the highlights of the evidence upon which the lower court concluded,

'The entire testimony taken as a whole leads me to only one conclusion and that is that the husband is guilty of adultery * * *.'

We have omitted to recite many details which while not necessarily significant in themselves, tend to support the conclusion reached by the lower court.

In Lee v. Lee, 237 S.C. 532, 118 S.E.2d 171, we had occasion to point out,

'This action is one in equity. Section 20--105 of the 1952 Code. Our duty in equity cases to review challenged findings of fact does not require that we disregard the findings below or that we ignore the fact that the trial Judge,...